Citation Nr: 1531083
Decision Date: 07/21/15 Archive Date: 08/05/15
DOCKET NO. 14-34 080 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to a rating increase in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to December 1, 2014.
2. Propriety of a rating reduction for PTSD, from 70 percent to a noncompensable evaluation, effective December 1, 2014.
3. Entitlement to a total rating for individual unemployability due to service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from December 1995 to February 2000.
This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri (RO), which denied the Veteran's claim for a rating increase above 70 percent for PTSD and a TDIU. During the pendency of the appeal, the RO considered pertinent clinical evidence added to the record and, in February 2014, proposed to reduce the 70 percent rating for PTSD to a noncompensable rating. By rating decision dated in September 2014, this reduction was implemented, effective December 1, 2014. Accordingly, the issues now before the Board are entitlement to a rating increase in excess of 70 percent for PTSD prior to December 1, 2014; propriety of a rating reduction from 70 percent to a noncompensable evaluation for PTSD, effective December 1, 2014; and entitlement to a TDIU.
For the reasons that will be discussed in detail in the REMAND below, the issues of entitlement to a rating increase in excess of 70 percent for PTSD prior to December 1, 2014; propriety of a rating reduction from 70 percent to a noncompensable evaluation for PTSD, effective December 1, 2014; and entitlement to a TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran and his representative will be notified by VA if any further action on their part is required.
This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2014).
REMAND
By history, the Veteran's service records indicate that during active duty, he was involved in a serious but non-fatal motor vehicle accident in September 1999. He was discharged from military service in February 2000. Over a decade later, he filed his original claim for service connection for PTSD, which was received by VA in December 2010. Based on the findings presented in the report of a January 2012 VA psychiatric examination, which included a diagnosis of PTSD linked to the verified in-service stressor of a motor vehicle accident, by rating decision dated in March 2012, the Veteran was awarded service connection and a 70 percent evaluation for PTSD.
Several months afterward, in July 2012, the Veteran submitted an application to reopen his claim for a rating increase in excess of 70 percent for PTSD and also for a TDIU. Pursuant to his claim, he was examined by a VA psychiatrist in December 2013, who reviewed the Veteran's pertinent history contained in his claims file and directly interviewed the claimant. Based on this, the VA psychiatrist determined that the Veteran presented a very inconsistent, contradictory, and dubious account of his personal and psychiatric history, including a questionable history of treatment for attention deficit and hyperactivity disorder (ADHD), and that he was a malingerer whose apparent motivation was for secondary gain, including obtaining amphetamine-based medication prescribed for treatment of ADHD. Accordingly, the psychiatrist determined that the Veteran did not present valid signs and symptoms to support the Axis I diagnoses of PTSD, major depressive disorder, or ADHD. The examiner also expressed doubt regarding the validity of these diagnoses as they appeared in the Veteran's clinical history and diagnosed him on Axis I with stimulant use disorder. The examining psychiatrist opined that there was no evidence that the diagnosis of stimulant use disorder was related to the Veteran's military service.
Based on the above clinical findings obtained during the December 2013 VA psychiatric examination, the RO reduced the 70 percent rating for PTSD to a noncompensable rating, effective December 1, 2014.
Medical records obtained and associated with the Veteran's claims file during the pendency of the appeal include VA and Social Security Administration records and contemporaneous medical evidence that post-dates the December 2013 VA psychiatric examination discussed above. These include a December 2014 statement and a January 2015 medical report from the Veteran's treating VA psychiatrist which, as relevant, presents current Axis I diagnoses of PTSD manifested by nightmares and flashbacks relating to his in-service motor vehicle accident in 1999, recurring major depression, episodic substance abuse disorder, and a history of ADHD. Although the December 2014 statement and a January 2015 medical report do not include discussion of how the treating VA psychiatrist arrived at his diagnostic assessments and conclusions, these nevertheless directly and entirely contradict the Axis I findings presented by the VA psychiatrist who examined the Veteran in December 2013. As the resolution of this appeal turns on the key and crucial question of whether or not the Veteran, in fact, has an actual and clinically valid diagnosis of PTSD, the Board, as finder of fact, deems it necessary to resolve this contradiction before it can proceed with adjudication of the present appeal.
Accordingly, after all pertinent clinical records relating to the Veteran's current psychiatric treatment received since January 2015 are obtained and associated with the evidence, the Veteran should be afforded a psychiatric examination by a VA psychiatrist who has not previously examined him. In the reported of the examination, the opining clinician should discuss whether there is concurrence with, or refutation of the Axis I diagnoses presented by the Veteran's treating VA psychiatrist in the December 2014 statement and January 2015 medical report, as well as any other clinical report post-dating the December 2013 opinion that presents a diagnosis or diagnoses on Axis I. The opining clinician's report must include a full discussion of the facts of the case and any conclusions presented must be supported by a detailed rationale.
If and only if the addendum opinion refutes the diagnostic opinions presented in the December 2013 VA examination report and supports a finding that the Veteran has a current and valid Axis I PTSD diagnosis, should he then be provided with a new VA psychiatric examination to assess the severity of this disorder.
In view of the foregoing discussion, the case is REMANDED to the RO/AOJ for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. After obtaining from the Veteran a report of all sources of psychiatric counseling and treatment received since January 2015 and all necessary authorizations, the RO should obtain these identified records and associate them with the Veteran's claims file.
All actions to obtain the aforementioned requested records should be documented fully in the claims files.
2. Then, the RO should schedule the Veteran for a psychiatric examination with a psychiatrist who has NOT previously examined the Veteran.
The Veteran's claims files and his relevant clinical history should be made available for the clinician's review in connection with this addendum opinion request. The examiner's conclusions regarding the Veteran's current Axis I diagnosis/diagnoses and the clinical validity of the Axis I diagnosis/diagnoses presented by the record should be made in the context of the clinical records associated with the claims files and the VA psychiatric treatment records dated after the December 2013 VA psychiatric examination. The examiner should note in his/her report that the Veteran's claims file has been reviewed.
Following the above review, interview, and any relevant clinical testing, the examiner should discuss whether he/she concurs with, or refutes the Axis I diagnoses presented by the Veteran's treating VA psychiatrist in his December 2014 statement and January 2015 medical report, as well as any other clinical report post-dating the December 2013 opinion presenting a diagnosis or diagnoses on Axis I. The clinician's addendum opinion(s) must include a full discussion of the facts of the case and any conclusions presented must be supported by a detailed rationale.
If and only if the opining clinician determines that the Veteran does have an Axis I diagnosis of PTSD, should the Veteran then be scheduled for a VA psychiatric examination to assess the severity of his service-connected psychiatric disability. The examiner should review the Veteran's pertinent clinical history and present opinions as to the following questions:
(a.) Is the Veteran's PTSD currently manifested (best approximated) by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication?
(b.) Is the Veteran's PTSD currently manifested (best approximated) by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior; self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent event.)
(c.) Is the Veteran's PTSD currently manifested (best approximated) by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships?
(d.) Is the Veteran's PTSD currently manifested (best approximated) by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships?
(e.) Is the Veteran's PTSD currently manifested (best approximated) by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name?
(f.) Any other current manifestations of PTSD should be identified and, if present, the severity thereof should be identified and discussed. The examiner should also provide a Global Assessment of Functioning (GAF) score of the Veteran's level of social and occupational impairment and discuss the significance of the score.
(g.) The examiner should provide a detailed assessment, accompanied by supportive discussion and commentary, of the impact that the Veteran's PTSD has upon his occupational capacity and employability, given his educational and vocational history.
The examiner should provide a complete rationale for any opinion(s) provided. If he/she is unable to provide a requested opinion without resorting to speculation or conjecture, he/she should so state in his/her discussion and explain why.
3. The RO should advise the Veteran that he is advised to report for the scheduled examination, if appropriate, and that his failure to do so could result in an adverse outcome to his claim. 38 C.F.R. § 3.655 (2014).
4. Afterwards, the RO should review the claims file to ensure that the aforementioned development and remand instructions have been fully and properly executed. Any noncompliance found should be rectified with the appropriate development.
5. Thereafter, the RO should readjudicate the Veteran's claims of (a) entitlement to an evaluation greater than 70 percent for PTSD prior to December 1, 2014; (b) propriety of a rating reduction from 70 percent to noncompensable for PTSD, effective December 1, 2014, and; (c) entitlement to a TDIU.
If the maximum benefit sought on appeal remains denied with respect to any claim, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).